Supreme Court: Money is free speech, provided you have money to start with

The Supreme Court today struck down a federal law that limits the aggregate amount an individual can give to candidates, political parties and polical action committees (PACs) in one election cycle.

That amount was $123,200, and included a separate cap on giving to candidates of $48,600 per cycle.

Thanks to the McCutcheon v. FEC ruling, those limits are now gone.

Many are comparing today’s ruling to the infamous, and disastrous, Citizens United decision of 2010.

What the court left in place was the $2,600 per candidate limit that any one individual can give any particular candidate during an election cycle.

The court ruled 5-4, with all the court’s conservatives backing the striking down of the campaign finance limits.  Clarence Thomas, of course, was upset with the court’s decision. Even though he supported it, he thinks all limits should be done away with.

Justice Roberts, for the court, concluded that the aggregate limits “intrude without justification on a citizen’s ability to exercise ‘the most fundamental First Amendment activities.’ ”

Supreme Court via Shutterstock

Supreme Court via Shutterstock

The argument that “money is free speech” reminds me of when the religious right tells gay people that they don’t need marriage equality because they can already get married in every state of the union.

But that’s not true, you think, gays can only get married in a (growing) handful of states – right?

The answer is simple, the religious right says: Just marry someone of the opposite sex!

The same “wishes were horses” argument applies to McCutcheon.  “Every American” has the right to influence the political process with never-ending gobs of money.  Provided that you ignore the fact that most Americans don’t have never-ending gobs of money, so they won’t ever be able to “speak” in politics at all.

Part of the reason we protect freedom of speech in this country is because we all have the ability to speak.  The whole “fight bad speech with good speech” argument presumes that we can all speak in the first place.

And while that’s true of vocal speech, and physical speech (marching in a protest), it’s not true of economic speech.

Not everyone can afford to give money to a political candidate.  And most couldn’t afford to give the old, now extinct, $123,000 limit in one election cycle – or a lifetime.

There is quite literally no way that you can fight economic speech with more speech if you don’t have the economic ability to speak in the first place.  And most people don’t.

Most of us are quite literally gagged when it comes to pitting our economic speech against the speech of the rich, and the corporate, in the political realm. They have the money, the speech, and we don’t.

They can get married, and we can’t.

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CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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72 Responses to “Supreme Court: Money is free speech, provided you have money to start with”

  1. Terses says:

    Republican candidates want to destroy unions. It seems unlikely democrats have to pay union members to fight them.

  2. Rick Arndt says:

    “The limits of tyrants are prescribed by the endurance of those whom they oppress.” Frederick Douglass

  3. J.M. Becker says:

    I wish I was as optimistic as you Rick, but history shows us only through extreme pressure does the powerful yield to the public. FDR only happened because the communists become a legitimate possibility. We would need far more radicals who scare hell out of the system, and they would then give as little as possible to quell the masses… thus the cycle repeats.

  4. J.M. Becker says:

    @quillerm: I can understand that argument, and it would be of immense comfort to believe it’s true. Unfortunately you didn’t consider that even the modern communications cost lots of money, you still need many marketing and engineering experts. The truth is more graspable however, we don’t need hypothetical situations to ‘imagine’ a potential problem. The problem is in our faces, and the damage is obvious if you want to view it objectively. Which issues get talked about, which primary candidates win, and who is deemed an important constituency…. The inability for either party to take on wallstreet damages, our regulations completely broken existing only to further corporate aims. All those problems are already real, and are only becoming worse. Only when the politicians themselves don’t care about getting more money would your reality become true. This is not the situation, nor will it ever be without changing our system. …. And my god have you seen the impact at the local level? it’s even worse due to its inherent lack of transparency, who’s ‘tweeting’ ground level about local politics? Those races are dominated by big media, to an even higher level.

  5. J.M. Becker says:

    You completely fail to see the problem, the problem has nothing to do with who necessarily wins the race. The problem is what happens when that winner has to pay back those “supporters” with favorable votes. It’s not simply democrats vs republicans, where money is a problem…. it’s the whole nature of an elected representative serving the people, instead of the donors, once they actually get elected. NOTHING in life is free, those donors are gonna want some ROI, and you better believe they’re demanding some returns.

  6. Bill_Perdue says:

    Clinton signed the treaty.

  7. Badgerite says:

    Ok. Enough of your Bullshit. This is indicative of the truthfulness of what you say.
    I never said Clinton did not push for treaty ratification. But the Treaty itself was negotiated and signed by Bush the Elder. All Clinton did was get it RATIFIED by Congress and that occurred with mostly a party line vote with the OVERWHELMING NUMBER OF VOTES COMING FROM THE GOP SIDE OF THE AISLE. He signed it AFTER IT WAS RATIFIED. The treaty itself was negotiated and signed by Bush the Elder. And as I said, it really was not what decimated American manufacturing. Most of that has gone to China. Most especially high tech manufacturers like Apple. And they go to places like China because they can. As Chinese laborers agitate for better pay and conditions, probably some of those companies will bring production back here.
    BYE NOW!

  8. Rick Arndt says:

    Dont despair. Every day I see more and more people taking action to turn this fiasco around. Real change is on the horizon.

  9. Bill_Perdue says:

    DADT, DOMA, the antiunion anti-worker deregulation activities of Carter, the deregulation acts of 1999 and 2000 and numberless other right wing laws initiated by Republicans belong to the Democrats. Your denial of that fact is of no import.

  10. Badgerite says:

    Again. Bush the Elder was the President who negotiated and signed NAFTA.
    The treaty vote was very much along party lines with the GOP providing the OVERWHELMING number of votes needed for passage.
    Bill Clinton did advocate for the treaty but the truth is, the trend of globalization is more responsible than anything else for the decimation of American manufacturing.
    Mexico, itself, lost out to the orient in terms of cheap labor. NAFTA just became a lightening rod because Ross Perot and Ralph Nader made it one.
    You know, you just repeat yourself and I have already mentioned the National Labor Relations Board and how democratic appointees are simply better for labor interests than Republican ones, who are basically there to dismantle laws protecting union organizing. And, in fact, the unions generally support the Democratic party because they know this to be the case. Even if Alternet does not seem to highlight it much even when it is there in their own reporting.
    But I digress.
    NDAA ( National Defense Authorization Act) – Well, yeah, I support funding the military. And I would support that no matter who is or was president.
    Deregulation? Isn’t Obamacare criticized precisely because it does INCREASE regulation of the health insurance industry? I’ll answer that one. Yes.
    Murder? Yes, I support fighting back against the tyranny, death and destruction that is Al Qaeda.

  11. Bill_Perdue says:

    I believe you, but Bush didn’t order the racist, extra legal murders of US citizens. Democrats get away with a lot more – NAFTA, NDAA, murder, deregulation. Some like that and some oppose it.

  12. Badgerite says:

    I supported Bush’s use of drones to attack Al Qaeda as well. Of course, if Al Qaeda would like to come to a negotiating table, but that is not what they are about.

  13. This was the final nail in the coffin of democracy, at least on a federal level. Now corporate America can buy politicians of both parties en masse. David Koch is upset at being called un-American, but I can’t think of a better way to describe using money to take governance out of the hands of the people, and into the hands of the 1%. They’ve been using money to game the system since before the ink on the Constitution was even dry. The people always eventually came to their senses and fought back. Now, by the time that happens, it will be too late. We’ve been stuck with a congress that can’t even pass simple legislation, let alone a Constitutional amendment.

  14. Bill_Perdue says:

    I never doubted your support for Obama’s racist and extralegal murders.

  15. Badgerite says:

    Good. Cause that is the one you are going to get.

  16. Rick Arndt says:

    Good example.

  17. Rick Arndt says:

    Once again you say money will have no impact on elections.By this logic you might as well take the money out of the equation. Don’t forget, this isn’t just about funding to advertise our candidates. This is about who holds influence over legislation. An area that is very much unrepresented by those that cannot afford to “donate” to any particular campaign.

  18. Rick Arndt says:

    Its foolish to think that money wont sway legislative interest. The candidate indeed can make or brake their own election especially in areas with a population favoring one party. However I want my elected officials to not have corporate interest riding their back when they get into office. You say money has nothing to do with the candidate. Then I say take the money out of the equation.

  19. quillerm says:

    The Recall Election of Governor Scott Walker was funded by Unions. They spent 80% of their Federal stimulus funding, provided by the Federal Government, to unseat Walker. In the end, Walker won by a larger margin than the first time he won the Governorship. Even through the use of Federal ‘Stimulus’ funds (taxpayer cash) democrats lost. It’s not the money that counts, it’s the candidate.

  20. quillerm says:

    When Obama engaged in three years of misinformation about ACA to deceive the public and get the law passed, was that free speech? ACA has adversely affected MIllions of Americans by taking their wealth, jeopardizing their health by losing their physicians, etc. He who controls the media wins, not the person with the most money. The media refuses to hold leftists accountable, that is the key to winning elections.

  21. quillerm says:

    Candidates can be destroyed via blogs, OPED’s and allegations on the Internet. All of which, can be done for free. Democrats pay Union members to follow Republican candidates and harass them at events. Republicans haven’t fully exploited such tactics. Harry Reid even went so far as to allege Romney paid NO Taxes, most democrats and Independents believed that lie. It’s not about speech, it’s more about deceit, denial, deception and propaganda. Which Party is willing to totally engage in deception to win, then blame the people for believing them.

  22. quillerm says:

    I disagree, money won’t win elections in the new world where communication is basically free. Millions can receive information on a candidate via the Internet. This isn’t 1950 when the only way to communicate was phones, newspaper, radio and TV.

  23. quillerm says:

    In the end it’s still ‘One Person, One Vote’, so who cares. In the recent Florida race between Jolly and some democrat, the democrats spent three times Campaign Cash that was available to Jolly, the Republican. In the end, all that cash didn’t help democrats. Jolly won because he was for the people not Government control of our rights.

  24. Bill_Perdue says:

    That’s the answer I’d expect from someone who approves of the racist, extra legal murders of Arab and muslim American citizens.

  25. Badgerite says:

    There have been a lot of knives. We always bounce back. Unfortunately it will probably because of some crisis caused by the idiots this decision is going to help put in office.

  26. Badgerite says:

    We are about a gazillion miles away from a police state. The first thing Obama did was to do away with the practice of extraordinary rendition and enhanced interrogations by executive order. What Feinstein is trying to accomplish is to get the unvarnished truth on the record for all to see.

  27. jared says:

    I’m more than willing to put that behind me but I still don’t see where we’re being censored on the internet. AB is still here and having an impact. We’re truly stuck with a corrupt Supreme Court and congress. Citizens United decision is going to be here for a long while. If you believe internet censorship is on the horizon what do you propose we do… besides giving up?

  28. annatopia says:

    well this isn’t really settled law. if you look at the case law on campaign finance, the majority of cases actually ruled against limiting donations, capping donations, etc. there’s a whole string of cases from the 80s that chipped away at FECA (71/74). of course we did get buckley and mcconnell, but those are the exceptions to the rule in this line of jurisprudence.

  29. annatopia says:

    one more thing… i strongly disagree with the premise that money = speech. money is merely a megaphone for speech. and money allows wealthy donors to amplify their speech and drown the rest of us out.

    SCOTUS is beyond wrong on this one.

  30. annatopia says:

    i gotta say, i felt like SCOTUS gave me a gift yesterday. i’d reached the campaign finance unit of my federal government class and was putting together my lecture notes when i got a text about mccutcheon. let me tell you, adding that allowed me to give a killer lecture on how we are 1 step away from returning to the wild west days of campaign financing from the late 19th century. all they have to do is do away with those caps on giving to individual candidates and we are back where we started in before taft-hartley. it’s truly amazing how we’ve taken so many steps backward.

  31. Badgerite says:

    Your analysis is spot on. Money isn’t speech. It’s funding. If the Supreme Court creates a legal fiction that turns money into speech, what they are really doing is embedding a class system in the democratic process. The level of funding anticipated gives an extreme competitive advantage to those who will do the bidding of the people funding them. And that advantage has nothing whatsoever to do with political speech or free thought or expression. If one person can donate to a candidate in every single electoral contest in the country, they almost form their own political party. The Party of ME.

  32. Rick Arndt says:

    The supreme court ruling is a twisted and warped interpretation of law. Anyone with eyes can see the writing on the wall. This is about corporate power. This ruling tells me there is much work to be done to get our government back to its original form of “We the people.”

  33. Opinionated_Lady says:

    The only way to fight the big money in politics is to speak up. What is all that money used for? Lots of it goes to persuade people to vote against their own interests. While most of us don’t have the money needed to buy an election through advertising, we can organize and educate our families, neighbors, and friends. When the politicians realize that people power is as effective in getting them elected as the TV, radio and newspaper ads, they may start listening to the people, instead of Daddy Warbucks.

  34. TheAngryFag says:

    I’ve said it before and it is even more true now… In the United States we no longer have elections. We have Auctions.

  35. jomicur says:

    Wow, still more of your condescension. Guess that’s all you’ve got, huh?

  36. jared says:

    Congrats on thinking so, but if you actually did, you would realize that of all the arguments you could make against my suggestion, net neutrality is potentially the weakest. Enjoy your pity party.

  37. jomicur says:

    I am perfectly aware what net neutrality means. Thank you for your smug condescension, though.

  38. jared says:

    I guess my point is that, both the left and right seem to married to the idea that only the gov’t and laws can improve the situation as they each see fit, and everyone seems to always be frustrated. There might be other solutions…not necessarily the just the internet. This species was granted (evolved) the capability of thought. Maybe we can all achieve the same goals using a different approach… just have to be creative about it. Either that or I’m just not feeling as defeated as you are.

  39. jared says:

    I’m not sure you’re aware of what net neutrality means.. In this country (so far) only website speeds have been throttled. I’m not talking about producing high quality streaming videos here, just some text and a few pictures. There have been almost no websites that have been shut down.

  40. Bill_Perdue says:

    The banana republic is perfected and the police state is very close to being perfected.

    Next stop, the Finland Station.

  41. Silver_Witch says:

    I think you have a very valid point, Arab Spring is a perfect example. Things just have not gotten bad in America yet. When there is water and food rationing (and if people still have internet they can afford) I think Twitter will rein.

  42. GarySFBCN says:

    Thanks for that! I’m going to use it and other France quotes.

  43. angryspittle says:

    Aahhh, Bush V. Gore looms larger than ever doesn’t it?

  44. angryspittle says:

    Yes there is. And lying to Congress is a felony and therefore an impeachable offense but good luck with the current House. I could see maybe, just maybe, a progressive member introducing articles but they’d be tabled immediately.

  45. angryspittle says:

    “than” dammit.

  46. Silver_Witch says:

    I have been playing the same exact numbers for 22 years – I expect them to hit any day now! A girl can dream!

  47. Badgerite says:

    Thanks Ralph. That worked out well. Tell me, is there even a Green Party in existence anymore?

  48. jared says:

    I think that’s a cop out. That was just one suggestion, maybe it wasn’t perfect. But I refuse to believe that there are no others…. have to keep thinking. I could use a little help here.

  49. Elijah Shalis says:

    Hmmm and all these conservative justices are members of The Fellowship. Look them up, they supported the NAZIs and had no problem with their genocide. It is one scary bunch.

  50. jared says:

    That may be true, but we are “smarter” now than our ancestors. Or at least we have developed more knowledge. Let’s try to use it. Same old solutions have the potential to work, but they seem to be backfiring. I’m just trying to open up the discussion to more possibilities. A collaborative thinking effort may produce something more useful than just resorting to the same old tactics.

  51. Hue-Man says:

    Used to be able to “buy a Canadian passport” (investor/entrepreneur class). Better idea now to pick three countries, say Australia (for North American winter), Sweden (for summer), Singapore and spend 4 months as a visitor. Hint: buy lottery tickets.

  52. Ninja0980 says:

    Saw what you will about Roberts and Alito but the fact is Clarence Thomas is worse then either of them.
    I can’t think of anyone more unqualified who has ever served on the Supreme Court then him.
    And this is why I hate people telling us we need more Blue Dogs in the Senate and House. They are the ones who helped him get on the Supreme Court.
    If all the Democrats had voted no, he would been gone, history and rightfully rejected just like Bork was.
    As for the ruling itself, this is sadly going to help tip the scales for the Republicans, which was the whole point of the Roberts Court ruling this way.
    Between this and the VRA ruling, they are helping Republicans win the next presidential election just like they did in 2000.

  53. Indigo says:

    Old Ben knew that, he just didn’t put an exact date to it.

  54. Indigo says:

    Good comparison, it works!

  55. Silver_Witch says:

    I meant an American Expat…one who is giving up on the US. I thought about retiring to Mexico (money would go a long way) but I don’t speak the language and it is a little more dangerous there.

    In DC I always took the Metro so as not to deal with crazy drivers.

  56. Hue-Man says:

    What kind of expat? Canadians, i.e. born in Canada, Canadian parent, etc., welcome any time but a Canadian passport helps. American citizens can visit – non-working – up to 180 days/year – reverse “snowbirds”.

    I deal with the snow days by not driving until the snow melts! I avoid driving in the snow anyway, worried about other drivers particularly those in SUVs.

  57. heimaey says:

    The end is all just falling into place perfectly.

  58. BeccaM says:

    Another knife to the already dying corpse of the American democratic-republic.

    Looks like we now know the answer to Benjamin Franklin’s admonition. We couldn’t keep it after all.

  59. 2karmanot says:

    History tells us that the only way to take power from the wealthy is to pry it from their cold,dead, manicured hands.

  60. Silver_Witch says:

    Thanks Hue-Man…I lived in DC for 15 years and we had about the same snow-fall…it was enough for sure to turn this Southern California woman into a big chicken re snow!!!

    If things get worse here though I might disregard the snow. Do they let ex-pats in?

  61. I seem to remember John Roberts swearing up and down that he would respect settled law during his confirmation hearings. He’s been just one great big gift to the uber-wealthy and a curse on real America. So why can’t we fire his ass for clearly lying during his interview process?

    Is there an impeachment process for supreme court justices?

  62. jomicur says:

    Using the internet as a tool for restoring democracy would require some semblance of net neutrality. That doesn’t exist. The corporations own and control the web, and that control will continue to expand.

  63. jomicur says:

    One of the signal events in the long, slow decline of the Roman Empire came when the Praetorian Guard put the empire up for sale to the highest bidder. That marked the end (more or less officially) of classical civilization. We have now had our own Praetorian Guard, the Supreme Court, do quite effectively the same thing for American civilization. The last vestige of pretense that this country is a going democracy has been tossed into a dumpster. The barbarians (read: corporations) are at the gates, and all we can hope for is to survive in any form at all.

  64. Hue-Man says:

    wiki: “Victoria averages just 26 cm (10.2 in) of snow annually, about half that of Vancouver. Roughly one third of winters see virtually no snow, with less than 5 cm (1.97 in) falling during the entire season. When snow does fall, it rarely lasts long on the ground. Victoria averages just two or three days per year with at least 5 cm (1.97 in) of snow on the ground.”

    “Victoria has recorded completely freeze-free winter seasons four times (in 1925/26, 1939/40, 1999/2000, and 2002/03). 1999 is the only calendar year on record without a single occurrence of frost. During this time the city went 718 days without freezing, starting on December 23, 1998 and ending December 10, 2000.”

    BTW, Political contributions (federal): “Corporations have been banned for [sic] donating to political parties in Canada since 2004, but that has not stopped business heavyweights, along with their colleagues and relatives, from making generous personal donations. Rules limiting individual donations to $1,100 a person [now CAD1,200] sound strict, but in reality they are much more flexible.

    More than 100 employees of accounting firm Ernst & Young collectively donated more than $76,000 to the Liberals, most of it in 2008.”

  65. jared says:

    It’s time to start thinking outside of the box. Instead of trying to control the outcome using legislation, one way would be to override the power using a free market solution. The internet is one such way for us to reach the people. The corporate money is essentially used to buy votes through advertising. If you can reach the people through other media (and relatively cheap, I might add), then you essentially take away the power from the rich. Futhermore, with widespread internet access, it’s clear to me that representative government is becoming more and more useless by the day. Particularly given the widespread corruption amongst our representatives. It still has a role, because it allows people to devote their time to other life matters, but there’s no reason why in another 10-20 years it would be unheard of for at least some of the power to be handed back to the people (and I mean individuals), through a fair internet based voting system.

  66. PeteWa says:

    when I was a child learning of the last robber baron age, I would have never guessed that I would live through a robber baron hopped up on steroids and crystal meth age.

  67. basenjilover says:

    Koch brothers and Adelson are jumping up and down with glee. A big heartfelt thanks to Bush who appointed John Roberts as chief justice.

  68. pappyvet says:

    I have about $ 4.25 and I wonder how much of my free speech “right” I can buy with it.
    Can I go golfing with a Supreme Court Justice? Well no.
    Can I get a government official on the line whenever I need to? Not really.
    How about a lobbyist? Nothing there either.
    Hey maybe I will not have to pay taxes like G.E. Not likely.
    But at least I live in a free country. Freer for some.
    What was that phrase they used for Joe Stalin? First among equals? Right

  69. Silver_Witch says:

    Oh noooo…I think I see that 2014 election coming down on the money side – and you know that means Republicans and a handful of Tea Party candidates (just to give the illusion to the wingnuts that they have powe).

    Wish it didn’t snow in Canada….I would move.

  70. Naja pallida says:

    Hey, it’s not Clarence Thomas’ fault that you didn’t inherit an oil company.

  71. Indigo says:

    We’ll be better peasants for it.

  72. Adam Feldman says:

    “In its majestic equality, the law forbids rich and poor alike to sleep
    under bridges, beg in the streets, and steal loaves of bread.”—Anatole France

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